Opinion
Case No. 18-cv-02982-KAW
08-09-2018
MARIE A. ARNOLD, Plaintiff, v. FARMERS INSURANCE EXCHANGE, et al., Defendants.
ORDER DENYING MOTION FOR ENTRY OF DEFAULT; CONTINUING HEARING ON MOTION TO DISMISS
Re: Dkt. No. 38
Plaintiff Marie Arnold brought the instant case against Defendants Farmers Insurance Company, Inc. and Farmers Insurance Exchange. Plaintiff now moves for "entry of default judgment by [the] court" as to Defendant Farmers Insurance Exchange. (Plf.'s Mot. for Entry of Default, Dkt. No. 38.) The Court construes Plaintiff's motion as a motion for entry of default, as default has not yet been entered against Defendant Farmers Insurance Exchange. Instead, Plaintiff's prior two motions for entry of default by the clerk were both denied by the Clerk of the Court. (See Dkt. Nos. 30, 35.) Because Plaintiff has not served the operative complaint on Defendant Farmers Insurance Exchange, the Court DENIES Plaintiff's motion for entry of default.
I. BACKGROUND
On May 21, 2018, Plaintiff filed her initial complaint against Defendant Farmers Insurance Exchange, asserting that a breach of contract claim based on the failure to satisfy an insurance policy. (Compl., at III, Dkt. No. 1.) On May 24, 2018, Plaintiff filed a first amended complaint which corrected Defendant's name from "Famers Insurance Exchange" to "Farmers Insurance Exchange," and attached several documents. (First Amended Compl. ("FAC"), Dkt. No. 5.) On June 1, 2018, Plaintiff served the first amended complaint on Defendant Farmers Insurance Exchange. (Dkt. No. 10.)
On June 19, 2018, Plaintiff requested leave to file a second amended complaint, which the Court granted. (Dkt. Nos. 13, 14.) On June 28, 2018, Plaintiff filed her second amended complaint. The second amended complaint added Defendant Farmers Insurance Company, and brought additional claims for breach of the duty of good faith and fair dealing, violation of the Fourth Amendment right to privacy, and violation of "Business Professional Code Section 11200." (Second Amended Compl. ("SAC"), Dkt. No. 16.)
On July 3, 2018, Plaintiff served the second amended complaint on Defendant Farmers Insurance Company. (Dkt. No. 23.) That same day, Plaintiff filed a motion for entry of default as to both Defendants. (Dkt. No. 26.) Plaintiff attached proof of services which stated that Defendant Farmers Insurance Exchange was served with the first amended complaint on June 1, 2018, and that Defendant Farmers Insurance Company was served on July 3, 2018. (Dkt. No. 26-1, Exhs. A-B.) On July 9, 2018, the Clerk declined entry of default . (Dkt. No. 30.)
Immediately after, Plaintiff moved for entry of default as to Defendant Farmers Insurance Exchange, based on service having been completed on June 1, 2018. (Dkt. Nos. 31, 31-2 ¶ 2.) On July 24, 2018, the Clerk again denied entry of default as to Defendant Farmers Insurance Exchange. (Dkt. No. 35.)
On July 30, 2018, Plaintiff filed her third motion for entry of default as to Defendant Farmers Insurance Exchange. Again, Plaintiff stated that she served the complaint on Defendant Farmers Insurance Exchange on June 1, 2018. (Dkt. No. 39-1 ¶ 2.) Plaintiff also stated that she served the second amended complaint on Defendant Farmers Insurance Company on July 3, 2018. (Dkt. No. 39-1 ¶ 3.)
II. DISCUSSION
As an initial matter, the Court treats Plaintiff's motion for entry of default judgment as a motion for entry of default pursuant to Federal Rule of Civil Procedure 55(a). Before a plaintiff can seek default judgment under Federal Rule of 55(b), "the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Contrary to Plaintiff's assertion that default was entered as to Defendant Farmers Insurance Exchange on July 30, 2018, the Clerk of the Court has repeatedly denied entry of default as to Defendant Farmers Insurance Exchange. (See Dkt. Nos. 30, 35.)
The Court finds that entry of default is not appropriate because Plaintiff has failed to serve the second amended complaint -- the operative complaint -- on Defendant Farmers Insurance Exchange. Plaintiff has only served the first amended complaint on Defendant Farmers Insurance Exchange. (Dkt. No. 39-1, Exh. A.) By filing her second amended complaint, however, that second amended complaint "supercede[d] any earlier complaint, rendering the original complaint non-existent and, thus, its filing date irrelevant." Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010); see also Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012) ("Once a Plaintiff files an amended complaint, the original pleading no longer serves any function in the case."). Thus, the fact that Plaintiff had served the first amended complaint is insufficient to support entry of default; Plaintiff must serve the operative complaint on Defendant Farmers Insurance Exchange before default can be entered. See Employee Painters' Trust v. Cascade Coatings, Case No. C12-101JLR, 2013 WL 12158588, at * (W.D. Wash. Sept. 27, 2013) (denying motion for entry of default because "even though [the defendants] were properly served with the original complaint under Rule 4, any subsequent pleadings must still be served on each [d]efendant pursuant to Rule 5(a)(1)(B)."). This is especially the case where Plaintiff has alleged new claims for relief against Defendant Farmers Insurance Exchange; Rule 5(a)(2) requires service of a complaint that asserts new claims for relief, even when a party is in default.
Although entry of default is a function of the Clerk, Plaintiff has continued to file motions for entry of default without remedying the deficiencies identified by the Clerk. The Court therefore finds it necessary to issue this order.
While Plaintiff has served the second amended complaint on Defendant Farmers Insurance Company, Defendant Farmers Insurance Company is a separate party from Defendant Farmers Insurance Exchange. Service of Defendant Farmers Insurance Company does not constitute service of Defendant Farmers Insurance Exchange; each Defendant must be separately served.
III. CONCLUSION
For the reasons stated above, Plaintiff's motion for entry of default as to Defendant Farmers Insurance Exchange is DENIED. Before Plaintiff may move for entry of default as to Defendant Farmers Insurance Exchange, Plaintiff must serve Defendant Farmers Insurance Exchange with the operative complaint. Defendant Farmers Insurance Exchange then has twenty-one days to respond to that complaint. Fed. R. Civ. P. 12(1)(A)(i). Only if Defendant Farmers Insurance Exchange fails to timely respond to the complaint may Plaintiff seek entry of default.
The Court notes that Attorney Shannon L. Knorr, counsel for Defendant Farmers Insurance Company, has informed Plaintiff that her firm would represent both Farmers Insurance Company and Farmers Insurance Exchange, and that "all future communication and service of documents" can be directed to Attorney Knorr. (Dkt. No. 39-1, Exh. C (emphasis added).) --------
In order to give Plaintiff time to serve Defendant Farmers Insurance Exchange, and in the interest of judicial economy, the Court VACATES the hearing on Defendant Farmers Insurance Company's motion to dismiss. (See Dkt. No. 33.) The Court will reset the hearing after Defendant Farmers Insurance Exchange is served and its time to respond to the complaint has passed. The briefing schedule for the motion to dismiss remains in place.
IT IS SO ORDERED. Dated: August 9, 2018
/s/_________
KANDIS A. WESTMORE
United States Magistrate Judge